Resisting a Prison Without End
by Jayson Hawkins and Panagioti Tsolkas
The fantasy of those who profit off the Prison Industrial Complex has long been perpetual incarceration. This dream has seeped into reality in recent decades as many states began adopting LWOP (life without parole) sentences. Yet another means of warehousing people without a release date has gotten less press—that of civil commitment.
In January 2021, detainees held in Minnesota’s civil commitment center staged a hunger strike in response to their indefinite detention. According to a report in Minnesota’s Star Tribune, “Tensions have been building for years over the prolonged confinements at the Minnesota Sex Offender Program (MSOP) treatment centers.” But things came to a head during the pandemic following an outbreak of COVID-19 at the Moose Lake facility.
Three men died at Moose Lake between early December and the start of the protest, and many more were ill with COVID, surfacing complaints that staff didn’t do enough to mandate mask-wearing and social distance, instead relying on lockdowns that kept people confined in rooms nearly 24 hours a day.
The dozen men ended their hunger strike after Department of Human Services (DHS) Commissioner Jodi Harpstead agreed to hold monthly meetings between them and the administration, promptly following a demonstration at her home on January 31. About 20 relatives and other supporters showed up at Harpstead’s residence, and two days later a meeting occurred via Zoom where the hunger strikers were able to voice their concerns.
The primary complaint was that there is no clear path for release from the program’s prison-like “treatment centers.” Mike Whipple, one of the strikers, put it this way: “It was my understanding that I was to do the treatment, then be released. After 12 years, I’m still here, doing the same thing, over and over and over.”
The men on strike have argued that civil commitment in Minnesota is essentially a death sentence. There have been 86 men who have died while in custody at MSOP facilities.
Organizers of the hunger strike reported feeling muscle pains, dizziness, nausea and rapid weight loss from lack of nourishment after the two weeks without food. Merry Schoon of Appleton, MN, has a 33-year-old son, Daniel A. Wilson, held at Moose Lake. In response to the hunger strike, she said, “I am relieved that no one was seriously hurt or died, but this system of indefinite confinement has gone on far too long.”
She continued, “These men have families and they deserve a second chance to be productive members of society just like everyone else.”
The monthly meetings that Harpstead conceded to were scheduled to last through May. While the agency made no commitment to specific changes, under the agreement that ended the hunger strike, DHS stated they will develop a report on the state sex offender program following the discussions and produce recommendations.
Perhaps the sessions and report on the recommendations could ripple out and offer a glimmer of hope to more than 6,000 prisoners nationwide who have completed their sentences but remain incarcerated under the guise of civil commitment.
These programs emerged in the 1990s from the fabricated premise that some sex offenders suffer from mental illnesses that make them more likely than other people with felony convictions to commit additional crimes after release. The U.S. Supreme Court upheld the idea in a 1997 ruling that stipulated indefinite confinement was allowable as long as it was “not punishment” and the individual subjected to it had a “personality disorder” or “mental abnormality.” Kansas v. Hendricks, 521 U.S. 346 (1997).
Minnesota law allows an individual deemed “sexually dangerous” or to have a “sexual psychopathic personality” to be held until “the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of treatment and supervision.”
In the 27 years that the statute has been in place, a mere 13 individuals have been fully let go from the program. This is in stark contrast to the 86 deaths.
The state currently detains more offenders per capita than 20 other states that have similar laws. It is third behind California and Florida for total number of committed offenders, according to a 2019 national survey of civil commitment programs. The annual cost of operating Minnesota’s program is $93.2 million according to a 2019 legislative report.
There are reported to be over 700 prisoners currently being held beyond the completion of their sentences, with Minnesota’s civil commitment program having been the subject of multiple legal challenges. A 2015 ruling in a U.S. District Court found it was “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” Karsjens v. Jesson, 109 F.Supp.3d 1139 (2015).
That ruling was later overturned on appeal and nothing changed. See: Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). [PLN, Nov. 2017].
But in February of this year, according to reporting from Reason.com, “the United States Court of Appeals for the Eighth Circuit gave the green light to a lawsuit challenging Minnesota’s civil commitment program for sex offenders. Importantly, the court allowed the plaintiffs to argue that civil commitment as practiced in the state is punitive in nature—something that’s not permitted of a supposedly therapeutic program.” The new legal challenge surfaced as Karsjens v. Lourey, 988 F. 3d 1047 (2021), Tony Lourey being the DHS official who replaced Emily Johnsons Piper as the defendant named in the case brought by the same appellant class from MSOP.
The path to release, which was criticized by the initial court ruling, remains the main point of contention for MSOP prisoners. Commissioner Harpstead has stressed, “only the courts have the authority to decide when a client may be provisionally or fully discharged.” But hunger striker Russel Hatton called the mental health diagnoses central to those proceedings “fraudulent” and pointed out that the American Psychological Association has come down strongly against civil commitment by noting there is no such recognized mental health condition as being a “sexually violent predator.”
The January hunger strike was not the first time civilly-committed sex offenders in Moose Lake have protested their ongoing imprisonment without end. As PLN reported in August 2016, they also ran a voter-registration drive in the facility resulting in new voters that represented almost 20% of the 925 total voters registered in the small town of Moose Lake. However, little seems to have changed.
“The people in town just think we’re all monsters out here, and that’s not true,” said Kenny Daywitt, 32 at the time, a Moose Lake city council write-in candidate who was indefinitely committed and sent to MSOP after his prison sentence ended. “I’m definitely a person that has committed a sex offense, and I take full accountability for that. However, that’s not the person who I am today.”
Research from the mid-2000s by clinical psychologist Dr. Jesus Padilla undermined the premise that sex offenders were more likely to recidivate. Among the 93 sex offenders that he and a colleague tracked over five years, only six were arrested for another sexual crime—a rate of 6.5%.
According to a 2018 Bureau of Justice Statistics study, the recidivism rate for all state prisoners rearrested for the same crime within five years was 49%.
One of the groups supporting the hunger strikers, which calls itself OCEAN, has announced a community conference on July 18 on the front lawn of the State Capital, followed by a demonstration at Governor Tim Waltz’s mansion demanding an end to preventative detention in Minnesota.
Editor’s note: As of July 12, at least three detainees have been hospitalized in a second round of hunger strikes this year which began July 4. The Star Tribune reported that hunger striker Jeremiah Johnson collapsed from fatigue while three others fell unconscious, according to detainees and their relatives. DHS reported “10 or fewer” reported participating in the hunger strike, but the prisoners say that number is closer to 30, as many are not formally telling MSOP staff they are going without food. When asked about the reason for refusing food again, Daniel A. Wilson, a participant in both hunger strikes and co-founder of OCEAN, stated, “This place is a due process catastrophe and needs to be shut down.” The situation continues to develop as we go to press.
Additional sources: reason.com, startribune.com, Minnesota Sex Offender Program: Annual Performance Report (2019), thevoicesofocean.net
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Related legal case
Karsjens v. Piper
|Cite||845 F.3d 394 (8th Cir. 2017)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|